Nebraska Court of Appeals Affirms District Court Decision in Adverse Possession Case
In a decision filed December 31, 2012, the Nebraska Court of Appeals affirmed a decision of the District Court of Dakota County quieting title to land obtained by adverse possession. The land at issue was a 40-foot-wide strip of land running the length of the border between two farm properties. A family farm partnership (Neff Partnership) paid taxes on the property and owned the land based on the recorded legal description. Owners of the neighboring farm, the Garwoods, claimed title to the land by adverse possession based on their family’s treatment of the land for over 125 years.
The Garwoods insisted the original recorders omitted the land from the legal description of their land when sold to their great-grandfather in 1884. The Garwood family has farmed the land since 1884 and enclosed the land with their boundary fence at some point near or prior to 1950. In 1990, the Garwoods filed affidavits of possession with the Register of Deeds claiming the Garwoods’ adversely possessed the land. In 2008 and 2009, the Garwoods conveyed easements on the land and in 2009 the Garwoods sold a portion of the land. When the Garwoods requested the Neff Partnership sign a quitclaim deed to clear title to the land, the Neff Partnership filed an action to quiet title and to bar the Garwoods from claiming any right in the land.
A party claiming title by adverse possession must prove their possession is (1) actual, (2) continuous, (3) exclusive, (4) notorious, and (5) adverse for the statutory period of 10 years. Affirming the District Court decision, the Court of Appeals determined the Garwoods obtained ownership by adverse possession. The Court of Appeals cited the Garwoods’ actual, continuous, exclusive, possession of the land by farming the land for over 40 years and erecting and maintaining the fence encompassing the land with their property. The Court of Appeals continued that, although payment of Real Estate Taxes is a circumstance a court should consider in adverse possession cases, payment of taxes alone is not determinative of ownership.